The staff of the Committee on Open Government is authorized to issue advisory opinions. The ensuing staff advisory opinion is based solely upon the information presented in your correspondence.

Dear :

I have received your letter and hope that you will accept my apologies for the delay in response.

According to your letter, in July, you requested from the City of Auburn a copy of your personnel file and a list of City employees “offered an amnesty for an amnesty program...” You were informed that the City was “looking into” whether it could disclose the contents of the personnel file to you, but you had received no additional response as of the date of your letter to this office. You were also told that “there wasn’t a list concerning the amnesty program.”

In this regard, I offer the following comments.

First, I point out that the Freedom of Information Law pertains to existing records, and that §89(3)(a) of that law states in part that an agency, such as the City of Auburn, is not required to create a record in response to a request. Therefore, if no list of persons to whom amnesty was offered exists, the City would not be obligated to create such a list on your behalf. Rather than seeking a list, it is suggested that you might request records or portions of records identifying those employees to whom amnesty was offered. It is also noted that I am unaware of the nature of the amnesty program to which you referred. Therefore, I cannot advise with certainty that the names of those appearing in records must be disclosed.

Second, there is no provision in the Freedom of Information Law that focuses specifically on personnel records. Rights of access to those records are, as in the case of other records, dependent on the content of those records.

Third, as a general matter, the Freedom of Information Law is based upon a presumption of access. Stated differently, all records of an agency are available, except to the extent that records or portions thereof fall within one or more grounds for denial appearing in §87(2)(a) through (j) of the Law. From my perspective, two of the grounds for denial are pertinent in determining rights of access to personnel records.

Sections 87(2)(b) and 89(2)(b) authorize an agency to withhold records or portions of records the disclosure of which would constitute “an unwarranted invasion of personal privacy.” Because you are the subject of the personnel records that have been requested and cannot invade your own privacy, I believe that the records must, in most instances, be made available to you. Moreover, §89(2)(c) states that records about an individual are accessible to that person, except to the extent that an exception to rights of access might apply. If, for example, the contents of your personal file include reference to other persons, those references may be withheld if disclosure if release would result in an unwarranted invasion of the privacy of a person other than yourself.

The other exception serves potentially as a basis for denial of access. However, due to its structure, it often requires disclosure. Section 87(2)(g) pertains to pertains to internal governmental records or communications and authorizes an agency to withhold records that:

"are inter-agency or intra-agency materials which are not:

i. statistical or factual tabulations or data;

ii. instructions to staff that affect the public;

iii. final agency policy or determinations; or

iv. external audits, including but not limited to audits performed by the comptroller and the federal government..."

It is noted that the language quoted above contains what in effect is a double negative. While inter-agency or intra-agency materials may be withheld, portions of such materials consisting of statistical or factual information, instructions to staff that affect the public, final agency policy or determinations or external audits must be made available, unless a different ground for denial could appropriately be asserted. Concurrently, those portions of inter-agency or intra-agency materials that are reflective of opinion, advice, recommendation and the like could in my view be withheld.

If a supervisor expressed an opinion concerning your performance in writing to another City official, that portion of such a record may be withheld under §87(2)(g). There is no requirement that it must be withheld, however, and often opinions are expressed in evaluations that are shared with employees. However, other portions of the records consisting of factual information or determinations pertaining to you must, in my view, be disclosed, except, as suggested earlier, when disclosure would result in an unwarranted invasion of the privacy of another person.

Lastly, the Freedom of Information Law provides direction concerning the time and manner in which agencies must respond to requests. Specifically, §89(3) of the Freedom of Information Law states in part that:

"Each entity subject to the provisions of this article, within five business days of the receipt of a written request for a record reasonably described, shall make such record available to the person requesting it, deny such request in writing or furnish a written acknowledgment of the receipt of such request and a statement of the approximate date, which shall be reasonable under the circumstances of the request, when such request will be granted or denied, which shall be reasonable in consideration of the circumstanced relating to the request and shall not exceed twenty business days from the date of such acknowledgment, except in unusual circumstances. In the event that such unusual circumstances prevent the grant or denial of the request within twenty business days, the agency shall state in writing both the reason for the inability to do so and a date certain within a reasonable time, based on such unusual circumstances, when the request shall be granted or denied.”

If neither a response to a request nor an acknowledgment of the receipt of a request is given within five business days, if an agency delays responding for an unreasonable time beyond the approximate date of less than twenty business days given in its acknowledgment, if it acknowledges that a request has been received, but has failed to grant access by the specific date given beyond twenty business days, or if the specific date given is unreasonable, a request may be considered to have been constructively denied [see §89(4)(a)]. In such a circumstance, the denial may be appealed in accordance with §89(4)(a), which states in relevant part that:

"...any person denied access to a record may within thirty days appeal in writing such denial to the head, chief executive, or governing body, who shall within ten business days of the receipt of such appeal fully explain in writing to the person requesting the record the reasons for further denial, or provide access to the record sought."

Section 89(4)(b) was also amended, and it states that a failure to determine an appeal within ten business days of the receipt of an appeal constitutes a denial of the appeal. In that circumstance, the appellant has exhausted his or her administrative remedies and may initiate a challenge to a constructive denial of access under Article 78 of the Civil Practice Rules.